I recently second-chaired a week-long jury trial on an armed home-invasion robbery case involving a twelve-count indictment. The State put on over twenty witnesses. I made the opening statement and cross-examined many of the State’s witnesses, including the forensic witnesses and the cooperating codefendant. I am posting my draft opening statement in this case in the hopes that I can get some feedback and pointers from more experienced criminal defense lawyers. The opening statement went pretty much as written here. Suggestions are welcome.
I. Theory: If Mr. L- Can Be Prosecuted on the Evidence in this Case, then Anybody Can.
The only three people who saw the robber with the silver and black revolver told the police that what that person looked like, and it was nothing like Mr. L-. The State is bringing in a lot of witnesses, but what you won’t hear is a lot of evidence tying Mr. L- to this crime. There is no eyewitness evidence and no forensic evidence pointing to Mr. L-.
A. Victims’ description of the person with the silver and black handgun do not match Mr. L-
The three victims who saw the robber with the silver and black handgun told the police that this person was very short, little over five feet, wearing a ski mask and a tan trenchcoat with dark clothes underneath. Two of the three victims told the police that they were looking for a woman with light skin, wearing gloves. One of the victims told police she was wearing tan timberland boots.
Mr. L- is 5’11” and as you can see, he is dark-skinned. He was wearing a white sweater and black sneakers that night, and he had no gloves. Nor were gloves found anywhere near him.
B. The police arrested the first person they saw, even though he did not match the description of the robber.
After that 911 call was placed that night, at least nine police officers and two canine units came to the scene at [address]. And after they caught one robber red-handed behind the house, and saw another suspect running, they arrested the next person they saw even though he did not fit the description given by the victims. One dog found rubber gloves and jewelry behind this house across the parking lot [point on map]. Another dog found a ski mask and two jackets behind a house a block in the other direction [point on the map].
Two police officers will say that they saw Mr. L- walking a block away from the scene of the robbery [point on the map] fifteen minutes after the suspects ran from the scene and that they found a silver and black ruger revolver near where they arrested Mr. L-.
C. The Police performed DNA tests on the gun they found, on the tan Gap jacket they found, and on the ski masks they found. None of the DNA tests point to Mr. L-.
The State will tell you that the DNA evidence does not exclude Mr. L-. That’s true. It doesn’t exclude Mr. L- or me or even Judge J-.
D. No fingerprint evidence in this case.
For some unfathomable reason, the State did not try to test the gun they found for fingerprints. [In the trial, a witness for the State testified that they did test the gun, but no fingerprints were found. The State did not test the cartridges.]
E. There is no evidence about the registration of the gun they found.
F. N. J. was first told Mr. L-’s name by detectives and expects to receive a much lighter sentence in exchange for testifying here.
You will hear testimony from the one robber caught at the scene redhanded that he committed this crime with Mr. L-. This man was first given Mr. L-’s name by the detectives interrogating him. And you will hear that this admitted robber expects to receive a much lighter sentence in exchange for his testimony in this case.
This prosecution would be humorous if it were not so terrifying. If the State can prosecute Mr. L- on this evidence, they can prosecute anyone. A horrible thing happened on the night of November 27. And the police were told who to look for – a small skinny person between 5’ and 5’2” wearing a tan trenchcoat, dark clothes, and tan timberland boots. But they didn’t listen. They arrested a man who is the wrong height, wearing the wrong clothes, and probably the wrong sex. And they have found no circumstantial evidence tying Mr. L- to this crime. There can be only one just verdict for a person charged on the evidence in this case: Not guilty.
Edit: My thoughts on openings continue to evolve – with the help of Judge Fine’s How to Win Trial Manual and the volume on Openings from Herbert Stern’s Trying Cases to Win series. I think I would now attack the snitch much harder and from the beginning.